Litigators have to wake up to the use of analytics and other technology in helping them provide better outcomes for their clients, the partner who heads Herbert Smith Freehill’s decision analysis team said yesterday.
Alexander Oddy tweaked the quote of W Edwards Deming to say: “Without data, you’re just another litigator with an opinion.”
Speaking at the Law Society’s virtual commercial litigation conference, he outlined how technology was augmenting the traditional approach of gut feel and experience when advising clients both on the substance of their cases and on the costs.
HSF was the first law firm to sign up with litigation analytics company Solomonic three years ago and Mr Oddy described how analytics helped the firm to achieve “marginal gains” and to do things “a little bit better”.
It provides business intelligence – listing all new claims that have been issued – helps “shape the right team” for a particular matter, and analyses previous case outcomes. The system also has some predictive facility, he added, and could help tune the arguments.
Mr Oddy showed how the platform aided the lawyers in understanding a particular party’s litigation behaviour, as well as the performance of other law firms, counsel and experts, and how individual judges have decided issues, “down to quite a granular level”.
This all led to a “different calibre of discussion with the client”, he explained, for example by being able to point to the success rate of the type of claim it wanted to bring.
HSF created the decision analysis service five years ago. The reasoning behind it was to improve on ‘gut feel’, to make better decisions and avoid cognitive biases.
The service builds a decision tree and models the outcomes of a dispute “in a more sophisticated way” than saying a case has a certain percentage chance of success. The model can then be adjusted to test what the key issues are that lead to a significant change in the outcome.
“If you understand this, the client can take a decision as to where it applies its resources,” he said.
But the partner stressed that this was all about assisting the client make the decision, rather than predicting what the outcome would be.
HSF has also moved into using historic case data to inform how it prices litigation. Called Project Jigsaw, it has analysed 120 cases the firm has handled and enables fee-earners to enter the characteristics of the case into an app – such as the number of experts, expected length of trial and documents for disclosure – to estimate its cost, even broken down to hours per lawyer per phase.
Rather than pricing a case based on experience, which even for a senior litigator is a relatively limited number of matters, “when I use this tool, I’m leveraging the insights of 120 cases from a whole range of colleagues”, Mr Oddy said.
“I can generate this effort curve in 10 minutes rather than two days for an associate working on an Excel spreadsheet.” Again, though, he stressed that this was just a tool to assist lawyers, rather than provide an accurate prediction of how much a matter would cost.
Mr Oddy urged litigators to adopt a “growth mindset”. Old dogs, he said, “can learn and have to learn” new tricks.
Data analytics were invading all areas of life and there was no reason to think the law should be exempt from this. “It’s no longer viable to say ‘I’m a lawyer, I don’t do numbers’,” he cautioned.
This meant lawyers have to develop their skills in handling such technology, rather than just their legal skills. “We have to apply the technology thoughtfully and do so in ways that drive efficiency and better outcomes for our clients…
“At every stage through the journey of litigation, is the task being carried out one that technology could assist to save time and replace a person?”
He stressed that it would not put lawyers out of a job. “It’s nowhere near being able to do the core lawyering skills of analysis and advocacy in the way we carry it out, but there are vast numbers of individual processes and steps where it can help.”
Mr Oddy also pointed out that a growing number of firms are using technology to improve the way they litigate. “We don’t want to be outgunned by someone with more knowledge and insight than we do,” he said.